Turner v. Iron Chief Mining Co.

Cássoday, J.

From the undisputed evidence it appears that the demand of payment and notice of protest were made and given more than ten months after the transfer and.indorsement of the note. The law is well settled that a promissory note payable on demand, whether with or without interest, is due forthwith, and an action thereon against the maker is barred by the statute of limitations, if hot brought within the time prescribed by statute after its date. Wheeler v. Warner, 47 N. Y. 519 ; Howland v. Edmonds, 24 N. T. 307; Burnham v. Allen, 1 Gray, 496 ; Sylvester v. Crapo, 15 Pick. 92 ; Taylor’s Adm’rs v. Witman’s Adm’rs, 3 Grant’s Cas. 138; Larason v. Lambert, 12 N. J. Law, 247; Curran v. Witter, 68 Wis. 16 , 60 Am. Rep. 827 ; Schriber v. Richmond, 73 Wis. 12 ; Mitchell v. Easton, 37 Minn. 335 ; Hill v. Henry, 17 Ohio, 9; Caldwell v. Rodman, 5 Jones, Law, 139; Wilks v. Robinson, 3 Rich. Law, 182. The mere fact that such note is payable at a particular place does not even make it necessary to allege or prove that it was so presented before the commencement of the action. Dougherty v. Western Bank, 13 Ga. 287 . This being so, it necessarily follows that the note in question became due and payable immediately upon its inception, and that upon its transfer and indorsement Moore, Benjamin & Co. might immediately have maintained an action thereon against the maker corporation, without any demand whatever. Two questions are thus suggested: Was it necessary for that firm to demand payment and give notice of nonpayment in order to charge Henry M. Benjamin as indorser thereon? And, if so, was he discharged by the delay in making such demand and giving such notice ?

*359 It has been held in New York, and perhaps elsewhere, that an “indorsed promissory note, payable on demand with interest, is a continuing security, on which the indorser will remain liable until an actual demand, and upon which the holder is not chargeable with neglect for omitting to make demand within any particular time.” Merritt v. Todd, 23 N. Y. 28 , 80 Am. Dec. 243 . But much of the rea-,, soning in that case seems to have been disapproved by subsequent cases in the same court. Herrick's. Woolverton, 41 N. Y. 581 ; Wheeler v. Warner, 47 N. Y. 519 ; Pardee v. Fish, 60 N. Y. 266 ; Crim v. Starkweather, 88 N. Y. 339 ; Parker v. Stroud, 98 N. Y. 379 ; Shutts v. Fingar, 100 N. Y. 541 . The case of Merritt v. Todd, 23 N. Y. 28 , has been expressly repudiated in Louisiana, where it is held that “a demand note must be protested and notice given within a reasonable time to hold an indorser; and the fact that the indorsement was for accommodation, and that the note bears interest, makes no difference.” Thielman v. Gueble, 36 Am. Rep. 267 . This ruling seems to be in harmony with the current of authority in this country, as appears from the valuable notes by Mr. Freeman in 80 Am. Dec. 250 -254. Among the cases supporting this view may be cited: Furman v. Haskin, 2 Caines, 372 ; Sice v. Cunningham, 1 Cow. 397 ; Field v. Nickerson, 13 Mass. 131 ; Seaver v. Lincoln, 21 Pick. 267 . The ordinary contract of an in-dorser of a note is to pay the same, if the maker does not, on presentation at maturity, in case he is duly notified. Charles v. Denis, 42 Wis. 57 ; Sumner v. Bowen, 2 Wis. 524 ; Catlin v. Jones, 1 Pin. 130 . The only difference between such a case and the case at bar is that here the note was due before the indorsement was made. It is substantially the same as a note payable at a fixed time, and then indorsed by the payee after maturity. The rule seems to be firmly established that, in order to charge such an indorser after maturity with liability, payment must be demanded *360 of the maker within a reasonable time thereafter, and, in case of failure to pay, notice thereof must thereupon be given to the indorser. Berry v. Robinson, 9 Johns. 121 , 6 Am. Dec. 267 ; Poole v. Tolleson, 10 Am. Dec. 663 ; Ecfert v. Des Coudres, 12 Am. Dec. 609 ; Nash v. Harrington, 2 Aikens, 9, 16 Am. Dec. 672 ; Colt v. Barnard, 18 Pick. 260 , 29 Am. Dec. 584 ; Kirkpatrick v. McCullough, 39 Am. Dec. 158 ; Gray v. Bell, 44 Am. Dec. 277 ; Leavitt v. Putnam, 3 N. Y. 494 , 53 Am. Dec. 322 ; Mudd v. Harper, 54 Am. Dec. 644 ; Bassenhorst v. Wilby, 45 Ohio St. 333 . This court has frequently sanctioned this doctrine. Corwith v. Morrison, 1 Pin. 489 ; Lindsey v. McClelland, 18 Wis. 481 ; Gunn v. Madigan, 28 Wis. 164 .

The cases cited also firmly establish the rule that where, as here, the material facts are admitted or not in dispute, the question as to what constitutes a reasonable time for making such demand and giving'such notice is one of law for the court. We are all clearly of the opinion that the delay in making the demand and giving the notice in the case at bar was unreasonable, and hence that the court properly directed a verdict in favor of the defendant. Henry M. Benjamin.

By the Oourt.— The judgment of the circuit court is affirmed.